Crossing the First Amendment line.

Prosecuted, Not Persecuted

Why a Muslim scholar probably crossed the First Amendment line.

The influential Muslim scholar Ali al-Timimi was recently sentenced to life imprisonment. The punishment follows his conviction in April on charges of conspiracy, attempting to aid the Taliban, soliciting treason, soliciting others to wage war against the United States, and aiding and abetting the use of firearms and explosives. Al-Timimi says that he is innocent. His defenders portray him as a political prisoner, prosecuted by a witch-hunting government bent on sweeping all Islamic spiritual and intellectual leaders into its dragnet, convicted by a jury infected with anti-Muslim paranoia, and sentenced by a reluctant judge hamstrung by draconian federal sentencing laws. "And that which is exploited today to persecute a single member of a minority," al-Timimi admonished Judge Leonie Brinkema at his sentencing, "will most assuredly come back to haunt the majority tomorrow."

Al-Timimi's case taps into the gathering fear that the peaceful tenets of mainstream Islam have been corrupted by violent zealots driven to destroy Western democracy. Responding to the London attacks, the British Parliament will soon consider new anti-terrorism legislation that would criminalize violent political propagandizing that glorifies terrorism. Britain, however, has no constitutional guarantee of freedom of speech equivalent to the American First Amendment. In the United States, should the First Amendment be understood to protect al-Timimi's speech? When his case is taken up on appeal, should he be set free?

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I have spent a fair part of my professional life as a lawyer and legal scholar struggling to identify the appropriate balance between our national commitment to freedom of expression and the necessity that society be empowered to ensure order and the rule of law. I once defended, in the Supreme Court, the right of the Ku Klux Klan to burn crosses as symbols of race-hate, arguing that our First Amendment tradition does not permit us to outlaw offensive symbols. Yet I have also represented the families of murder victims who sued the publisher of a murder training manual called Hit Man, which was used to train a paid killer in the dark arts of assassination. The line illuminated by those two different cases—a line that has been drawn in the cornerstone decisions of modern First Amendment law—seeks to separate mere abstract expression from the concrete use of expression to effectuate evil.

This broad distinction plays out in multiple tracks. One may not be punished for merely being a member of a group that allegedly adheres to a violent agenda—the Klan, the Communist Party, or the Virginia Jihad. But one may be punished for participating in group meetings to plot the execution of that agenda. One may not be punished for merely preaching and teaching the desirability of terror or treason, but one may be punished for training and instructing others in terrorist techniques. One may not be punished for rhetoric that is "threatening" in the vague sense of generating fear and loathing, but one may be punished for words that make a threat to do real harm. Aiding and abetting, an ancient concept in criminal law, may be accomplished by equipping someone with physical tools, like explosives or radios. It may also be accomplished by training someone with intellectual tools—providing information and instruction for the purpose of assisting someone to perpetrate a crime. (Read about the Supreme Court cases that refined these legal standards.)

What does all of this mean for Ali al-Timimi? There is no doubt that he engaged in inflammatory and offensive rhetoric. In the wake of national shock and grief over the Sept. 11 attacks, he told his followers that America "had it coming," that Islam and America were at war, and that U.S. troops were legitimate targets. But did he go beyond mere rhetoric, beyond preaching and teaching?

I think he did. The case appears to turn largely on one dinner meeting, held on Sept. 16, 2001, five days after the attacks. This was not a public rally, but a small gathering of Islamic men from the Washington, D.C., area who had repeatedly watched bloody jihad videos, who owned assault rifles, participated in "paint ball" military training exercises, and took regular target practice at firing ranges. There is conflicting evidence about al-Timimi's role in the meeting. One account attempts to cast him in a relatively neutral light, as someone who railed against the United States but never incited anyone to treason or violence.

Other evidence, however, contradicts this account. There was testimony that as the meeting began, al-Timimi told the attendees that the gathering was an "amana," meaning that it was ensconced in an obligation of secrecy. To enforce the amana, al-Timimi allegedly had the window blinds drawn and the phones disconnected from the wall. Al-Timimi reportedly stated that the Sept. 11 attacks were justified. America was at war with Islam, he proclaimed. His listeners should heed the call of Taliban leader Mullah Omar to defend Muslims in Afghanistan by fighting against the American troops scheduled to invade the country in pursuit of al-Qaida. Al-Timimi drew support from fatwas, or religious rulings. When one of the men at the meeting asked to review a fatwa, al-Timimi allegedly gave it to him to read but advised him to burn the copy after he had read it. Al-Timimi also advised participants on how to travel without drawing attention to themselves.

Al-Timimi's conduct appears to be at the cusp of incitement and aiding and abetting, blending elements of both. The facts present a strong case that he acted with criminal intent. But more than that is required. A fair-minded jury could also find that al-Timimi's purpose was to exhort his followers to take action immediately—or at least as quickly as they could be trained and prepared, and that it was likely they would act on his exhortations. So, too, a jury could find that al-Timimi provided his followers with substantial assistance. These concrete elements of criminal conduct were intertwined with fiery rhetoric, but the rhetoric does not excuse al-Timimi from otherwise criminal actions—it only makes the acts of incitement and aiding and abetting more dangerous.

Given the heightened tensions generated by ongoing attacks from radical Islamic groups, we should be wary of bias seeping unconsciously into the minds and hearts of jurors, judges, and the public. Yet discounting cautiously for all of that, there was substantial evidence presented by the prosecution that al-Timimi genuinely intended to encourage, incite, and facilitate terrorism. The jury and judge clearly thought that this evidence rang true. Judge Brinkema is no enemy of freedom of speech or religion. Among her most well-known prior opinions was a pathbreaking decision holding that the First Amendment was violated when a public library installed Internet filtering software. Yet she thought the jury's verdict was justified.

While the guilty verdict may be appropriate, what about the life sentence? Does the punishment fit the crime? Due to the harshness of federal sentencing principles, Judge Brinkema had little discretion to soften the penalty, as she openly lamented at the sentencing hearing. Bear in mind, however, that for al-Timimi's conviction to be valid in the first place, we must assume that he intended for his disciples to wreak death and destruction. None of his students appear to have succeeded, but others like them do. The severe punishments that the law metes out for such conduct seek to deter terrorism by punishing teachers like al-Timimi for steeling others to engage in it.

America's First Amendment standards did not change on Sept. 11, but the context against which we evaluate exhortations to engage in terrorist activity did. Speech that may once have been dismissed as carelessly overblown abstraction may now be fairly judged as calculated conspiracy. Case-by-case, judges and juries must evaluate factual questions like intent, concreteness, immediacy, and probability of success. As the Supreme Court stated in a 1963 decision,"[W]hile the Constitution protects against invasion of individual rights, it is not a suicide pact." Justice William O. Douglas, renowned for his zeal in protecting freedom of speech, captured the distinction perfectly in his dissenting opinion in Dennis v. United States, a case involving the prosecution of American Communist leaders in the 1950s. "If this were a case where those who claimed protection under the First Amendment were teaching techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts," Douglas wrote. "The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale."